B-131445, JUL. 2, 1957

B-131445, JUL. 2, 1957

TO LIEUTENANT COLONEL C. W. GRIFFIN, FINANCE OFFICER, DEPARTMENT OF THE AIR FORCE:

YOUR LETTER OF MARCH 27, 1957, REQUESTS OUR DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A CERTIFIED VOUCHER FOR SIX MONTHS' GRATUITY PAY TO MRS. VERA HOUSEAL, THE MOTHER OF DECEASED AIRMAN LOYD HOUSEAL.

MRS. HOUSEAL WAS DESIGNATED BY THE DECEASED ON FORM DD-93, DATED MARCH 1, 1955, AS THE PRINCIPAL BENEFICIARY FOR GRATUITY PAY IN EVENT HE DIED WITHOUT A SURVIVING SPOUSE OR CHILD. WHEN HE REENLISTED ON AUGUST 15, 1955, THE MEMBER INDICATED THAT HIS MARITAL STATUS WAS "SINGLE" AND THAT HE HAD ONE PERSON DEPENDENT ON HIM FOR SUPPORT, A DAUGHTER THREE YEARS OF AGE. THIS LATTER INFORMATION WAS INITIALED BY THE DECEASED WHERE IT APPEARED ON THE ENLISTMENT FORM--- ITEM 21--- AND THE ENTIRE FORM WAS SWORN TO AND SUBSCRIBED BY HIM.

AIRMAN HOUSEAL DIED ON MAY 2, 1956, NOT THE RESULT OF HIS OWN MISCONDUCT. AS YET NO CLAIM BY OR ON BEHALF OF ANY CHILD FOR THE SIX MONTHS' GRATUITY HAS BEEN PRESENTED TO YOUR OFFICE. FURTHERMORE, SEPARATE WRITTEN STATEMENTS HAVE BEEN RECEIVED FROM MRS. VERA HOUSEAL, THE MOTHER AND PRINCIPAL BENEFICIARY, DOROTHY HOUSEAL, SISTER, AND JASPER HOUSEAL, BROTHER, ALL RESIDING IN VALDOSTA, GEORGIA, THE HOME OF THE LATE AIRMAN, TO THE EFFECT THAT THEY HAVE NO KNOWLEDGE OF ANY DAUGHTER FATHERED BY THE DECEASED OR THAT HE WAS EVER MARRIED. MOREOVER, THE PERSONAL AFFAIRS OFFICER AT MOODY AIR FORCE BASE, VALDOSTA, GEORGIA, WHO RENDERED CASUALTY ASSISTANCE TO MRS. VERA HOUSEAL, CAUSED A SEARCH OF THE RECORDS AT THE LOWNDES COUNTY HEALTH DEPARTMENT, LOWNDES COUNTY WELFARE DEPARTMENT, LOWNDES COUNTY CLERK OF SUPERIOR COURT, LOWNDES COUNTY RED CROSS CHAPTER, AND PINEVIEW HOSPITAL, VALDOSTA, GEORGIA, TO DETERMINE THE EXISTENCE OF SUCH A CHILD. ALL RESULTS WERE NEGATIVE. FINALLY, A SEARCH OF THE RECORDS AT THE AIR FORCE RECORDS CENTER, ST. LOUIS, MISSOURI, RELATING TO THE DECEASED'S PRIOR ENLISTMENT FAILED TO REVEAL ANY INFORMATION CONCERNING THE NAME AND ADDRESS OF THE CHILD OR THE CHILD'S MOTHER.

SIX MONTHS' GRATUITY PAYMENTS TO BENEFICIARIES OF DECEASED MEMBERS OF THE AIR FORCE WERE CONTROLLED ON THE DATE OF AIRMAN HOUSEAL'S DEATH BY 10 U.S.C. 903, 1952 EDITION, WHICH PROVIDED, IN PART, AS FOLLOWS:

"IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY * * * (MEMBER) THE BRANCH, OFFICE, OR OFFICERS OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH * * * (MEMBER) PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY * * *.'

THIS AND A SIMILAR STATUTE CONCERNING NAVAL PERSONNEL CREATED TWO PREFERRED GROUPS, WIDOWS, AND CHILDREN IN THAT ORDER, WHO HAVE AN ABSOLUTE RIGHT WITHOUT DESIGNATION TO THE EXCLUSION OF ALL OTHERS TO THE PROCEEDS OF THE DEATH GRATUITY. 22 COMP. GEN. 85. A PERSON WHO HAS THIS ABSOLUTE RIGHT CANNOT WAIVE THE BENEFITS. 24 COMP. GEN. 46. THE WORD "CHILDREN" HAS BEEN CONSTRUED TO INCLUDE ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED. 30 COMP. GEN. 277; 34 ID. 415. BOTH OF THESE CASES THE RELATIONSHIP OF THE CHILD WAS ESTABLISHED BY WRITTEN ACKNOWLEDGMENT ON THE FATHER'S PART, WHICH OVERCAME THE PRESUMPTION AGAINST THE EXISTENCE OF ILLEGITIMATE CHILDREN.

BY CONTRAST, INSOFAR AS IT CAN BE DETERMINED, AIRMAN HOUSEAL NEVER ACKNOWLEDGED PATERNITY OF A PARTICULAR, IDENTIFIED CHILD, BORN OR UNBORN. OUTSIDE OF HIS UNCORROBORATED STATEMENT ON THE ENLISTMENT FORM, THERE IS NO PROOF OF THE CHILD'S EXISTENCE. HENCE, THE PRESUMPTION AGAINST THE EXISTENCE OF ILLEGITIMATE CHILDREN REMAINS.

IN VIEW OF YOUR EFFORTS TO DETERMINE THE EXISTENCE OF A DAUGHTER, THE ABSENCE OF ANY CLAIM BY OR ON BEHALF OF SUCH CHILD, AND THE STATUTORY MANDATE "IMMEDIATELY" TO PAY THE GRATUITY, WE HAVE NO OBJECTION TO PAYMENTS OF THE VOUCHER, RETURNED HEREWITH, IN FAVOR OF MRS. VERA HOUSEAL, IF OTHERWISE CORRECT.